7.  The applicant was born in 1965 in Puno, Peru, and now lives in Gaillard, France.
8.  The applicant entered Switzerland in 1992. On 21 August 1992 he married a Swiss citizen and obtained a residence permit. The couple got divorced on 21 March 1999.
9.  In 1995 the applicant was the subject of a criminal investigation following an accusation against him by two young women (minors) of indecent assault and rape, offences under Articles 189 and 190 of the Swiss Criminal Code (see paragraph 24 below). On 1 September 1995 the public prosecutor discontinued the criminal proceedings for lack of evidence. That decision was upheld on appeal by the Court of Justice of the Canton of Geneva on 24 November 1995.
10.  On 24 September 2001 the Criminal Court of Cassation of the Canton of Vaud (Cour de cassation penale du canton de Vaud) found the applicant guilty of an offence against the sexual integrity of a person incapable of resistance and exploitation of a person in a position of need or dependency under Articles 191 and 193 of the Swiss Criminal Code (see paragraph 24 below). The applicant received a custodial sentence of three years. In addition, the court ordered the applicant’s expulsion from Swiss territory for the following ten years, but suspended execution of the order on condition that his behaviour was irreproachable for the following five years, a penalty provided for under the former Swiss Criminal Code. The applicant was ordered to pay the victim compensation in the amount of 10,000 Swiss francs (CHF) (approximately 8,150 euros (EUR)). Subsequently, the applicant served the prison sentence and was released on parole in December 2002.
11.  On 28 October 2002 the Department of Justice, Police and Public Security of the Canton of Geneva ordered the applicant’s expulsion from Swiss territory for an unlimited duration of time. It held that, independently of the (suspended) expulsion ordered in the criminal proceedings, it was competent to order the applicant’s expulsion in administrative proceedings. The applicant appealed against that decision to the Cantonal Appeals Board of the Geneva Immigration Police (La commission cantonale de recours de police des étrangers de Genève; hereafter “the Cantonal Appeals Board”).
12.  On 5 April 2003 the applicant remarried. His second wife had dual citizenship of Germany and Switzerland. On the basis of this marriage he applied for a residence permit to the Office for Migration of the Canton of Geneva (L’office cantonal de la population de Genève), which refused his request on 7 December 2004. The applicant appealed also against this decision to the Cantonal Appeals Board.
13.  At the beginning of 2005 the applicant’s wife, who until then had been living and working in Germany, joined her husband in Geneva.
14.   The Cantonal Appeals Board combined the applicant’s two appeals and dismissed them on 19 May 2005.
15.  On 9 January 2006, following an appeal lodged by the applicant, the Federal Supreme Court quashed the judgment of the Cantonal Appeals Board and ordered it to reassess the applicant’s case under Article 5 § 1 of Annex I of the Agreement on the Free Movement of Persons between the European Community and its Member States, on the one hand, and the Swiss Confederation, on the other hand, of 30 April 2002 (hereafter “the AFMP”; see paragraph 22 below).
16.  In December 2006 a new criminal charge was brought against the applicant for sexual acts with persons incapable of judgment or resistance, an offence under Article 191 of the Swiss Criminal Code (see paragraph 24 below). On 9 February 2007 the public prosecutor of the Canton of Geneva, however, ordered the discontinuation of the criminal proceedings. He ruled that although the applicant’s behaviour towards the woman who had made the accusation against him had been inappropriate, it had not been criminal. Although the woman had been inebriated, she had not been in such a state of intoxication as to be incapable of resistance. Furthermore, the applicant had immediately stopped touching her when she had expressed her refusal, and he had left her home.
17.  On 14 February 2007 the Cantonal Appeal Commission reassessed the applicant’s appeal under the AFMP and again dismissed it. It ruled that the refusal of the residence permit and the applicant’s expulsion from Swiss territory had been justified on the ground of public safety, in accordance with Article 5 § 1 of Annex I of the AFMP, and were proportionate to the aim pursued. It held, in particular, that the fact that a criminal charge had been brought against the applicant in 2006 proved that he posed a risk of recidivism and was therefore still a threat to public safety. The applicant appealed against this decision to the Federal Supreme Court.
18.  On 25 June 2007 the Federal Supreme Court upheld the decision of the Cantonal Appeal Commission. It ruled that the applicant’s behaviour in 2006 had called into question whether he was fully aware of the severity of the acts he had been sentenced for in 2001 and the effectiveness of the psychiatric treatment that he had received until the end of 2006. It held that the writ of nolle prosequi did not provide a basis for concluding that the applicant was no longer a threat to public safety. By contrast, the events in 2006 showed that the applicant still had difficulties controlling his sexual instincts in the presence of women who were in a situation in which they were not able to defend themselves, and that there was therefore a risk of recidivism. The Federal Supreme Court further held that his expulsion was proportionate under Article 8 of the Convention. It established that after his release from prison in December 2002, the applicant had been able to stay in Switzerland only because he had married a Swiss citizen in April 2003. It had learned from the hearings before the cantonal authorities that his wife, who had been informed about the applicant’s situation since the beginning of their relationship, had hesitated to settle in Switzerland. Only two years after their wedding, had she left her job in Germany and come to live with the applicant. Furthermore, there was no indication that she wanted to stay in Switzerland in the long term. With regard to the applicant’s personal life, the Federal Supreme Court noted that having arrived in Switzerland at the age of twenty-seven, he had always worked as a chauffeur but was neither professionally nor socially particularly well integrated. In the light of the seriousness of the crimes committed and the established risk of recidivism, the applicant’s interest in remaining in Switzerland did not outweigh the State’s interest in expelling him.
19.  On 8 February 2008 the applicant left Swiss territory.
20.  Upon request, the applicant informed this Court by letters of 17 June and 8 July 2013 that he was living with his second wife in Gaillard, France, where he had been granted a residence permit. Despite his requests, the Swiss authorities had refused to allow him to re-enter Switzerland.
21.   On 14 August 2013 the Government made the following observations on the above-mentioned letters. The entry ban was still in force and the applicant could therefore not freely return to Switzerland. However, he retained the possibility to apply for permission to enter Switzerland as a tourist or even to request reconsideration of the entry ban. In July 2007, one month after the final decision of the Federal Supreme Court, the applicant – who at that time was probably still living in Switzerland – had unsuccessfully applied to the authorities of the Canton of Geneva for permission to return to Switzerland. In 2008 he had further applied for a Swiss work permit. The cantonal authorities in Geneva had however dismissed his request because of the entry ban in force. The applicant had not submitted any further requests to the Swiss authorities. The Government also informed the Court that on 10 January 2012 the applicant had received a new sentence in Switzerland for entering Swiss territory without the necessary authorisation and without a valid passport, and for riding a motorbike under the influence of alcohol without having his driving licence with him. From those proceedings it transpired that the applicant had already been sentenced for illegally entering and working in Switzerland on 5 May 2009, and that he had an adult son living in Peru.